Supreme Court Voices Support for Church Seeking Playground Funds

20/04/2017

Making this case yet more interesting is a provision in the Missouri Constitution - and similar language in 36 other state constitutions - that bars direct or indirect aid to parochial schools. A amusing thing happened on the way to the Supreme Court that's explained in detail below.

- This story was updated at 1:57 p.m.

Like the federal Constitution, state constitutions have their own versions of the Establishment Clause.

University of Notre Dame Law professor Richard Garnett said separation of church and state "is supposed to advance religious freedom, by keeping the government from interfering in religious affairs; it is not supposed to be a warrant for crude discrimination". In a number of states, the contours of the separation requirement are stated in greater detail than in the First Amendment. State officials pointed to Missouri's 1945 constitution, which says "no money shall be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion". Five years ago, the church applied for a grant from the Missouri Department of Natural Resources for crushed rubber tires that could be used for playground materials.

The empty playground is seen at Trinity Lutheran Church in Columbia, Mo.

Trinity Lutheran ranked fifth out of 44 applicants for the scrap tire program in 2012, the ABA Journal reported this month.

The First Amendment charges Congress-and, by incorporation, the states-to "make no law respecting an establishment of religion, or prohibiting the free exercise thereof".

Trinity Lutheran's high-profile case was finally put on the argument schedule for April, just in time for Gorsuch to perhaps cast the deciding vote.

In addition, the change in administrations led to the unusual situation that the new attorney general - Josh Hawley - recused himself from the case due to the fact that he previously supported the church's efforts before election.

"On this case, the Constitution is very clear", declared Jerry Johnson, President of the National Religious Broadcasters.

It could provide a quick test of whether Justice Neil M. Gorsuch will, as expected, follow in the footsteps of the man he recently replaced, Justice Antonin Scalia.

The Republican governor said he didn't think his order would impact the Trinity Lutheran case.

NY has, over the decades, chipped away at its Blaine Amendment; a 1967 ruling by the state's highest court rightly upheld a program requiring school boards to loan textbooks to all students, public, private and religious - because the program was "meant to bestow a public benefit upon all school children, regardless of their school affiliations".

The letters come the day before oral arguments are scheduled to begin Wednesday.

But Justice Sotomayor noted that there were many cases in which states refused to fund churches, and that ruling against the church in this case wouldn't impede it from practicing its religion.

Even some of the court's liberal justices expressed concern that the state had drawn too hard of a line in barring a day-care and preschool site from the program simply because it is controlled by a church, Trinity Lutheran in Columbia.

The justices gave a skeptical hearing to a Missouri lawyer who was defending the state's decision to reject a grant request from a Lutheran preschool seeking to participate in a state program that provides money to schools to rubberize the surface of their playgrounds.

Although Justices Ruth Bader Ginsburg, Breyer, and Kagan raised questions about the posture of the case, it appeared unlikely that a majority of the court was interested in disposing of the case without answering the question raised by the church.

Justice Sotomayor pressed Cortman to explain how the church's free exercise of religion was being unconstitutionally violated, as it would not close its doors just because it had not received a reimbursement for the playground surface. Even though Missouri is one of 39 states across the country that now have restrictions on the state support of churches, last week, Missouri Gov. Eric Greitens, spoke out against the restriction.

The court agreed to take up the case in January 2016.

So, that's not enough for the Supreme Court to choose not to decide this case.

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